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recover the amount alleged to be due on a Farmers' F. Ins. Co. v. Saindon, 52 Kan. policy of hail insurance. Affirmed.
486, 39 Am. St. Rep. 356, 35 Pac. 15. The facts are stated in the opinion. There is need of first obtaining Mr. H. R, Turner, for appellant:
reformation of a contract of hail insurThe relief as to the correction in the ance on grain, before action for the loss, description of the property insured, being where the property is correctly described purely equitable in nature, required an ac- by insured in the application, but the comtion for a reformation of the contract of pany, through the inadvertence of its offithe parties before a judgment at law could cers and agents, inserts an incorrect numbe obtained.
ber of the township, the subject of the in19 Cyc. 654, note 4; Taylor v. Glens Falls surance being otherwise correctly described. Ins. Co. 44 Fla. 273, 32 So. 887; Collins State Ins. Co. v. Schreck, 27 Neb. 527, v. St. Paul F. & M. Ins. Co. 44 Minn. 440, 6 L.R.A. 524, 20 Am. St. Rep. 696, 43 N. 46 N. W. 906; Sun Ins. Co. v. Greenville W. 341; Kansas Farmers' F. Ins. Co. v. Bldg. & L. Asso. 58 N. J. L. 367, 33 Atl. Saindon, 52 Kan. 486, 39 Am. St. Rep. 356, 962; Connecticut F. Ins. Co. v. Kinne, 77 35 Pac. 15; Hearsh v. German Ins. Co. 130 Mich. 231, 18 Am. St. Rep. 398, 43 N. W. Mo. App. 457, 110 S. W. 23; Maher v. Hi871.
bernia Ins. Co. 67 N. Y. 283; Phenix Ins. It was error to allow the amended com- | Co. v. Gebhart, 32 Neb. 144, 49 N. W. 333; plaint to be filed after judgment was en Smith v. Commonwealth Ins. Co. 49 Wis tered, in that the amendment changed the 322, 5 N. W. 807; Germania L. Ins. Co. v nature of the cause of action, and in fact Lunkenheimer, 127 Ind. 536, 26 N. E. 1082; changed the entire cause of action. Eggleston v. Council Bluffs Ins. Co. 65
1 Sutherland, Code. Pl. $ 796; Wheaton Iowa, 308, 21 N. W. 652; Deitz v. Proviv. Voorhis, 53 How. Pr. 319; Mendenhall dence Washington Ins. Co. 31 W. Va. 851,
Harrisburg, Water Power Co. 27 Or. 38, 13 Am. St. Rep. 909, 8 S. E. 616; Lumber39 Pac. 399; Eikenberry v. Edwards, 67 man's Mut. Ins. Co. v. Bell, 166 Ill. 400, Iowa, 14, 24 N. W. 570; Maxwell v. Day, 57 Am. St. Rep. 140, 45 N. E. 130; Hob45 Ind. 509; Carpenter v. Huffsteller, 87 N. kirk v. Phænix Ins. Co. 102 Wis. 13, 78 N. C. 273; Allen v. Brooks, 88 Wis. 265, 60 W. 160; Carey v. Home Ins. Co. 97 Iowa, N. W. 253; Sanford v. American Dist. 619, 66 N. W. 921; Walrath v. Royal Ins. Teleg. Co. 13 Misc. 88, 34 N. Y. Supp. 144; Co. 16 Ohio C. C. 413, 9 Ohio C. D. 233; Mares v. Wormington, 8 N. D. 329, 79 N. W. Ætna Ins. Co. v. Brannon, 99 Tex. 391, 2 441; Woodward v. Northern P. R. Co. 16 L.R.A. (N.S.) 548, 89 S. W. 1057, 13 Ann. N. D. 39, 111 N. W. 627; Cooke v. North- Cas. 1020; 19 Cyc. 654, note 4; 28 Century ern P. R. Co. 22 N. D. 266, 133 N. W. 306. Dig. col. 818; 11 Decem. Dig. 189. Mr. H. C. DePuy, for respondent:
Where the court exercises the functions Collette was the agent of the defendant, of law and equity, it may, when there is and not of plaintiff, and his error in insert. an answer, grant any relief consistent with ing the wrong number of the township and the facts alleged, and the prayer for relief range was the error of the defendant, and may be amended accordingly at any time. not the error of plaintiff.
Getty v. Hudson River R. Co. 6 How. 19 Cyc. 826-829; 28 Century Dig. col. Pr. 269; Walsh v. McKeen, 75 Cal. 519, 17 3015; Kansas v. Minnesota Farmers' Mut. Pac. 673; Esch Bros. v. Home Ins. Co. 78 F. Ins. Asso. 31 Minn. 17, 47 Am. Rep. 776, Iowa, 334, 16 Am. St. Rep. 443, 43 N. W. 16 N. W. 430; Norman v. Kelso Farmers' | 229; Holmes v. Campbell, 12 Minn, 221, Gil. Mut. F. Ins. Co. 114 Minn. 49, 130 N. W. 141; 31 Cyc. 438, 439; Hearsh v. German 13; Smith v. Continental Ins. Co. 6 Dak. Ins. Co. 130 Mo. App. 457, 110 S. W. 23. 433, 43 N. W. 811; Leisen v. St. Paul F. & M. Ins. Co. 20 N. D. 316, 30 L.R.A. (N.S.)
Christianson, J., delivered the opinion 539, 127 N. W. 840; Whitney v. National of the court: Masonic Acci. Asso. 57 Minn. 472, 59 N.
There is no dispute about the facts in this W. 943; Pudritzky v. Supreme Lodge, K.
The testimony consists solely of cerH. 76 Mich. 428, 43 N. W. 373; Johnson v.
tain documentary evidence and the oral Dakota F. & M. Ins. Co. 1 N. D. 167, 45 N. I testimony of the plaintiff and of one Col
The W. 799; Erickson v. Ladies of Maccabees, plaintiff is a farmer residing on section 17,
agent for the defendant. 25 S. D. 183, 126 N. W. 262; Parno v. Iowa Merchants' Mut. Ins. Co. 114 Iowa, in this state. This township is named Ac
in township 157, range 51, in Walsh county, 132, 86 N. W. 211; Key v. Des Moines Ins. ton township. It is conceded that Collette Co. 77 Iowa, 174, 41 N. W. 614; Stone v.
was the duly authorized and licensed agent Hawkeye Ins. Co. 68 Iowa, 737, 56 Am. Rep. of the defendant company, authorized not 870, 28 N. W. 47; Siltz v. Hawkeye Ins. only to write insurance for the defendant, Co. 71 Iowa, 710, 29 N. W. 605; Kansas' but also authorized to appoint subagents.
On June 27, 1912, said Collette obtained | township 157, range 51. I undertook to fill from the plaintiff an application for hail in the description of the township in the insurance with the defendant upon crops on application and have since looked it up and the lands owned and occupied by plaintiff discovered it was a mistake.” in section 17, and in the adjoining section It is conceded that the plaintiff owned 8 in said township. The application was no lands or crops in township 158, range prepared by Collette, who asked questions 52; but the only lands and crops which he of the plaintiff and wrote down the an-owned were those located in Acton townin the application
and secured ship, and there is no dispute but that these the signature of the plaintiff, French, are the lands that were intended to be cov. thereto. The plaintiff did not read the ap- ered by the insurance. The testimony of plication before signing the same. The first the plaintiff, French, is substantially the part of the application is as follows: same as the testimony of Collette. The
“I, Amada French, of Oakwood, P. O., plaintiff afterwards on July 7, 1912, retownship of Acton, county of Walsh and ceived his policy, and on July 8, 1912, sufstate of North Dakota, hereby apply, etc.” fered a loss by hail. Proof of loss was duly
While the application was being pre- forwarded to the defendant company, and a pared, Collette inquired of the plaintiff as duly authorized adjuster for the defendto the legal description of the township, ant company, on July 31, 1912, adjusted and the plaintiff in reply stated that he the loss and agreed with the plaintiff in did not know; whereupon Collette stated writing that the loss sustained amounted to that he would look up the description for $771.25. The mistake in the policy was not himself and insert it. Collette, in inserting discovered until some time subsequent, when such description, made an error, in this, the defendant company refused to pay the that he wrote the number of the township loss as adjusted, but offered, however, to "158" and the number of the range “52," compromise by the payment of $400, which when he should have written the number the plaintiff refused and afterwards of the township "157" and the number of brought suit against the defendant for the the range “51.” The testimony of Collette amount of the loss as adjusted. in regard to the transaction is substantial- The original complaint sets forth by proply as follows: "The application was taken er allegations all the matters above recited right at Mr. French's home in section 17 relative to the mistake in the description in Acton township. It was township 157. as contained in the application and policy, I knew he lived in Acton township. I also how the same occurred, the issue of the knew the land he was working. The ap- policy, the loss thereunder, the adjustment plication was made on June 27, 1912. I of such loss, and the defendant's refusal saw Mr. French that day in the yard. He to pay the same, and prays judgment for decided to take out some insurance right $771.25, the amount of the loss as adaway, and I wrote the application in the justed. The original answer is not before yard. When I first took the application, I us. Hence we are unable to ascertain what started to write it (the description of the defense was offered thereby. The case was township) in, then I said, 'I suppose that tried to the court without a jury, a jury this is township 157, Acton township, and being expressly waived. he said he was not positive of that, and I said I would look it up myself and be sure;
At the very commencement of the trial, but I put it down 158, and it should have
the following proceedings were had:
By Mr. Turner: The defendant asks been 157. I did not look it up afterwards
leave to file an amended answer. I have to see if it was 158. I was supposed to go the same prepared, but it is not verified. to my brother-in-law's and get it in a plat I will ask to verify it later. book, but I was sure it was 158. I did not read the application over to him. I simply objection, but we would like to have the
By Mr. De Puy: The plaintiff has no asked him questions, and I put down the amendment allowed upon condition that the
I told him where to sign it, and he signed it. I intended to describe in the plaintiff shall have the right to interpose a
reply, if the plaintiff deems it desirable, application the land that I knew he was working, that is, the crops, upon sections setting up a waiver or estoppel in accord17 and 8 in Acton township. The mistake complaint to conform with the proof that
ance with the proof, and also amend his in regard to the number of the range was made under the same circumstances as the may be introduced at any time before judg
ment. mistake with reference to the township. I
By the court: All right. undertook to fill in the description. I have since looked it up and discovered it was a The plaintiff's amended complaint sets mistake. I intended to take an application forth almost identically the same facts as upon land situated in sections 17 and 8, in 'those contained in the original, answer, with
the single exception that another allega. I judgment, the court will rely upon the facts tion is added, stating the value of plain. alleged and proved as the basis of its remetiff's interest in the crops, and the prayer dial action.” Pom. Code Remedies, *83. for judgment was amended by asking that "If the facts entitling a party to a rem: the policy be reformed by substituting the edy, legal or equitable, are averred and proper description of township and range proved, he shall obtain that remedy, notin lieu of the incorrect description. The withstanding his omission to ask for it in amended answer admitted that Collette was his demand of judgment; and, if the facts a duly authorized agent of the defendant were not averred, he shall not obtain the company, that the policy was issued and remedy, although he demanded it in the delivered, but denied any mutual mistake most formal manner.” Pom. Code Remedies, in the issuance of the policy, and further / *84. denied that the defendant issued any policy “The prayer for relief forms no part of of insurance for injuries to the crops de the statement of the cause of action, and it stroyed. The trial court made findings of is unimportant unless there is ambiguity in fact and ordered judgment in favor of the such statement. A bad prayer for relief plaintiff, that the policy be reformed by cor
a prayer for improper relief will not recting the mistakes made therein with vitiate a pleading which is otherwise suffireference to the number of the township and cient. The facts alleged, and not the rerange, and further awarded plaintiff judg. lief demanded, are of chief importance, and ment against the defendant for the sum of they determine the relief to be granted.” $771.25 and interest and costs. The appeal 31 Cyc. 110, and cases cited. is taken from the judgment so entered. Under the provisions of $ 7482, Comp.
The appellant relies for a reversal on Laws 1913, the court has the right, in a three propositions: (1) That the court proper case, to grant an amendment of the erred in allowing the amendment of the pleadings even after judgment. The procomplaint; (2) that the insurance policy priety of the granting of such amendments must be reformed by an action in equity be rests within the sound discretion of the trial fore a judgment at law can be obtained; court and will not be reviewed by this court, (3) that, where both equitable and legal except in a case where such discretion has relief is sought, the equity action must be been abused. first and separately tried.
California has certain statutory proAppellant's first contention, that the visions, identical in language with $8 7478 trial court erred in allowing an amendment and 7482, Comp. Laws 1913, and in the case of the complaint, is clearly without merit. of Jackson v. Jackson, 94 Cal. 446, 29 Pac. It will be observed that, at the commence 957, the supreme court of California held ment of the trial, defendant's counsel ob- that “to allow amendments after the trial tained leave to amend the answer; that such has commenced is in the discretion of the leave was granted upon the condition that trial court, and error cannot be predicated the plaintiff be permitted to amend the com- on the allowance of such an amendment, plaint. No objection was made by defend- whereby issues were raised which were not ant's counsel to such arrangement, and the raised by the original pleadings, unless the record indicates that the trial court be adverse party asked to have the case relieved that this arrangement was entirely opened for the purpose of trying the new satisfactory to defendant's counsel. The issue.” amendment, however, could in no manner And in the case of Hancock v. Board of prejudice the defendant, and we are satis- Education, 140 Cal. 554, 74 Pac. 47, in fied that the trial court did not abuse its considering the same question, the Califordiscretion in permitting the complaint to nia court said: “It is also contended that be so amended. The amended complaint the court erred in allowing the plaintiff, sets forth substantially the same facts as after the evidence had been taken and the the original complaint, and the only change cause submitted, to file an amended comof which defendant's counsel complains is plaint. This contention is based upon the the amendinent of the prayer for judgment. theory that the amended complaint changed It is not contended that any substantial the cause of action. What has been said change was made in the body of the com- disposes of this proposition. The action plaint, and no showing or claim of surprise still remains upon the contract made by was made by the defendant. It is therefore the former board, and, as there has been self-evident that defendant was not preju- no change in the actual existence of the diced by the amendment, as the plaintiff was corporation which made the contract and entitled to recover upon the facts alleged was responsible for it, there has been no and proven, rather than the relief demanded such change in the cause of action as would in the prayer for judgment.
constitute a departure. The additional "Disregarding the prayer or demand of' facts and circumstances alleged in the
amended complaint do not involve any | made, and no objection in any manner inchange in the nature of the cause of action. ter posed to the submission of all the issues It still remained an action upon the con to the court. In fact, the defendant expresstract, and it was within the discretion of ly stipulated that a trial by jury be waived the court to allow the amendment."
and all the issues tried to the court. It is The decisions of the California court are therefore obvious that the defendant cannot also in harmony with the views expressed assert at this time that it was prejudiced by Chief Justice Morgan in the case of by a mode of procedure to which it acBarker v. More Bros. 18 N. D. 82, 85, 118 quiesced in the district court; nor can it be N. W. 823, and are sustained by the great permitted to object for the first time on apweight of authority. Firebaugh v. Burbank, peal that a cause is of equitable, and not 121 Cal. 186, 53 Pac. 560; Hancock v. Board of legal, cognizance, or vice versa; that of Education, 140 Cal. 554, 74 Pac. 47; there is a misjoinder of causes of action; Hedstrom v. Union Trust Co. 7 Cal. App. or that certain issues should have been sub278, 94 Pac, 387; Thomas v. Brooklyn, 58 mitted to a jury. 2 Cyc. 683, 690, 701. Iowa, 438, 10 N. W. 849; Tiffany v. Hen- We are also satisfied that appellant is derson, 57 Iowa, 490, 10 N. W. 885; Adams clearly in error when it contends that two v. Castle, 64 Minn. 505, 67 N. W. 638; actions are necessary where it is essential Kaufman v. Barbour, 103 Minn. 158, 114 to reform an insurance contract: First, N. W. 739; O'Brien v. Northwestern Consol. one in equity to reforın the policy, and Mill. Co. 119 Minn. 4, 137 N. W. 399; then an action at law for the amount due Hibernia Sav. & L. Soc. v. Jones, 89 Cal. thereon as reformed; but we are entirely 507, 26 Pac. 1089; Coubrough v. Adams, 70 satisfied that the policy may be reformed Cal. 374, 11 Pac. 634; Wabash & W. R. Co. and a recovery enforced thereon in the same v. Morgan, 132 Ind. 430, 31 N. E. 661, 32 tion that the court should have stopped
action. “There was nothing in the objecN. E. 85; Metropolitan L. Ins. Co.
with reforming the policy, and turned the Smith, 22 Ky. L. Rep. 868, 53 L.R.A. 817, plaintiff's over to a new action to recover 59 S. W. 24; Garver v. Garver, 145 Mo. App
their damages. The rule of courts of equity 353, 130 S. W. 369; Rothschild v. Harris was, when they had acquired jurisdiction, (City Ct. N. Y.) 125 N. Y. Supp. 41; How and had the whole merits before them, to land v. Caille, 153 Mich. 349, 116 N. W. proceed and to complete justice between the 1079; Higgins v. People, 2 Colo. App. 567, parties." Bidwell v. Astor Mut. Ins. Co. 31 Pac. 951; Hansen v. Allen, 117 Wis. 61, 16 N. Y. 267. 93 N. W. 805; Frey v. Owens, 27 Neb. 862, In this state the forms of civil actions 44 N. W. 42; Briggs v. Rutherford, 94 have been abolished, and it is provided that Minn. 23, 101 N. W. 954.
the provisions of, and all proceedings under, Appellant's next contention is stated in the Code in this state, "are to be liberally its brief as follows: "It is the contention construed with a view to effect its objects of the appellant and defendant that there and to promote justice.” Comp. Laws, $ were here two separate controversies, one 7321. equitable and the other legal; that, before "When the plaintiff is clothed with priany judgment could be entered or any mary rights, both legal and equitable, growamount found to be due, an action for a ing out of the same cause of action or the reformation of the contract must be brought same transaction, and is entitled to an equi. and it be determined as a matter in equity table remedy, and also to a further legal that such reformation be had, so that a remedy, based upon the supposition that the decree in such equity action would set out equitable relief is granted, and he sets the real contract of the parties, and then forth in his complaint or petition the facts upon that contract the plaintiff might sue which support each class of rights, and for the amount claimed to be due."
which show that he is entitled to each kind We are unable to agree with appellant in of remedy, and demands a judgment awardhis contentions for three reasons: First, ing both species of relief, the action will the questions now sought to be raised were be sustained to its full extent in the form not raised in the court below; second, the thus adopted.” Pom. Code Remedies, *78. policy could be reformed and recovery en- “In one civil action the plaintiff may not forced thereon in the same action; third, a only unite and obtain both the remedy of reformation of the policy was not essential reformation and the equitable remedy of to entitle the plaintiff to recover.
specific performance, but also the remedy The objections now raised by appellant of reformation and the legal remedy of a were in no manner urged in the court be- pecuniary judgment for debt or damages for low. No demurrer was interposed to the the breach of the contract as corrected, or complaint, and no demand for a separate the legal remedy of a recovery of specific trial of legal and equitable issues was property." 2 Pom. Eq. Jur. 3d ed. & 862.
Was it necessary for plaintiff to seek re-courts of law will apply the doctrines of lief in equity, and bring an equitable ac- waiver and estoppel, or allow proof of mistion for a reformation of the policy, or take, so as to enable the plaintiff to maincould he, by alleging all the facts in his tain his action for indemnity, and not drive complaint, maintain an action at law there- him to a court of equity." on in the first instance? It is conceded This question was before the supreme court that Collette, and not the plaintiff, com- of Kansas in American Cent. Ins. Co. v. Mcmitted the blunder. Collette, in preparing Lanathan, 11 Kan. 533, and in that case the the application, was the agent of the in-court says: "In such a case the contract is surance company, and not of the applicant. not void for uncertainty, nor is there any In so doing, he was acting within the scope need of applying for a reformation of the of his authority. Leisen v. St. Paul F. & contract, provided it appear, either from the M. Ins. Co. 20 N. D. 316, 30 L.R.A.(N.S.) face of the instrument or extrinsic facts, 539, 127 N. W. 837; Kausel v. Minnesota which is the true and which is the false deFarmers' Mut. F. Ins. Asso. 31 Minn. 17, 47 scription." Am. Rep. 776, 16 N. W. 430; Whitney v. These principles are sustained by the National Masonic Acci. Asso. 57 Minn. 472, following authorities : Phenix Ins. Co. v. 59 N. W. 943; Norman v. Kelso Farmers' Gebhart, 32 Neb. 144, 49 N. W. 333; Amér. Mut. F. Ins. Co. 114 Minn, 49, 130 N. W. ican Cent. Ins. Co. v. McLanathan, supra; 13.
Collette's error, therefore, was the Eggleston v. Council Bluffs Ins. Co. 65 error of the defendant, and it will not be Iowa, 308, 21 N. W. 652; Germania L. Ins. permitted to say that the plaintiff was to Co. v. Lunkenheimer, 127 Ind. 536, 26 N. E. blame or negligent in trusting the accuracy 1082; Deitz v. Providence Washington Ins. of its agent in preparing the application. Co. 31 W. Va. 851, 13 Am. St. Rep. 909, The only reason for the questions pro- 8 S. E. 616; Kansas Farmers' F. Ins. Co. pounded to the plaintiff was to ascertain v. Saindon, 52 Kan. 486, 39 Am. St. Rep. the truth with reference to the crops to be 356, 35 Pac. 15; Smith v. Commonwealth insured. It is conceded that the plaintiff Ins. Co. 49 Wis. 322, 5 N. W. 804; State gave truthful
answers to all questions Ins. Co. v. Schreck, 27 Neb. 527, 6 L.R.A. asked. The erroneous answer with refer- 524, 20 Am. St. Rep. 681, 43 N. W. 340, 344; ence to the description of the premises was Lumbermen's Mut. Ins. Co. v. Bell, 166 Ill. not the answer of the plaintiff, but of Col. 400, 57 Am. St. Rep. 140, 45 N. E. 130; lette. Plaintiff applied for insurance upon Hobkirk v. Phænix Ins. Co. 102 Wis. 13, 78 his crops in Acton township in Walsh N. W. 160; Carey v. Home Ins. Co. 97 Iowa, county. French and Collette both say that 619, 66 N. W. 920; Ætna Ins. Co. v. Branthe intention was to insure these crops,- non, 99 Tex. 391, 2 L.R.A. (N.S.) 548, 89 the crops growing on the very land where S. W. 1057, 13 Ann Cas. 1020; Maher v. the application was prepared and signed. Hibernia Ins. Co. 67 N. Y. 283 ; Phenix Ins. The plaintiff was in no manner to blame Co. v. Allen, 109 Ind. 273, 10 N. E. 85. See for the mistake in the application and also Leisen v. St. Paul F. & M. Ins. Co. 20 policy. This was solely the fault of the N. D. 317, 30 L.R.A. (N.S.) 539, 127 N. W. defendant, as, of course, the defendant is 837, and Gorder v. Hilliboe, 17 N. D. 281, bound by the acts of its agent in this case. 283, 115 N. W. 843, and Beach, Ins. § 1319. The contract was to insure the very crops A number of the authorities cited above are of the plaintiff in Acton township which based upon the theory that the insurance were destroyed by hail. “The agreement in company is estopped to deny the error of a policy is to insure certain property of a its agent, and that for that reason the party-such as the house in which he and plaintiff may sue upon the contract as ishis family reside, a barn on his farm, or a sued, and, without any allegations in the warehouse for the storage of produce, or, complaint relative to the mistake, introas in this case, certain personal property. duce testimony showing the knowledge of, A misdescription of the land on which any and mistake made by, the agent of the inof these is situated will not defeat a re- surance company in misdescribing the propcovery in case of loss by fire, because the
erty. As we view the matter, however, court looks at the real contract of the par- the principle of estoppel should not be apties, which was to insure certain property plied in a case where there is a misdescripof the policy holder. The fact that such tion of the property intended to be covered property was on a particular section—as by the policy, but it is rather a case comsection 16 instead of 17-cannot, of itself, ing within the rule that parol evidence may affect the risk, and would not render the be admitted for the purpose of showing that, policy void.” Phenix Ins. Co. v. Gebhart, by reason of a mistake, a written instru32 Neb. 144, 146, 49 N. W. 333, 334.
ment does not truly express the intention In May, Ins. vol. 2, p. 1330, § 566, it is of the parties. While there are cases holdsaid: “In most of the states, however, ing that such evidence is only admissible in